BAI KRISHNABAI Vs. FRAMROZ EDULJI DINSHAH

JUDGEMENT

(1.) The main question involved in this appeal is as to the effect of a decree passed by the High Court at Bombay, dated 26 January 1931, under the following circumstances: Puranmal G. Shinghanee, a very wealthy Marwadi Hindu (hereinafter called the testator), died on 20 December 1928, leaving him surviving a widow, who is the appellant before the Board, and no issue. He left a will dated 6 May 1925, and a codicil thereto dated 23 March 1928 whereof he appointed the respondents executors and trustees. The will and codicil have been duly admitted to probate. The testator by his will directed his executors to allow the appellant during her widowhood to reside in his house at Fatehpur in the Jeypur State, and to pay her the relatively small sum of Rs. 200 per month during her widowhood for her maintenance. Probably by reason of his belief in the truth of a charge made by him against the appellant in his will but no longer maintained, the testator declared that he was unwilling that the appellant should have a larger allowance than that sum, and he required his executors and trustees to resist any claim she might make for anything more than what was directed by his will to be given to her.

(2.) He bequeathed, among other legacies, Rs. 5 lacs, increased by the codicil to Rs. 8 lacs, to the University of Bombay. Cl. 8 of the will was as follows : "I devise and bequeath the residue of my immovable and moveable property whatsoever and wheresoever situated unto and to the use of my said executors and trustees and their heirs, executors and administrators, upon trust to expend such portion of it as they shall think fit in erecting a building suited for a hospital for Hindus, upon such site to be acquired by them in Bombay as to them shall seem fit, and shall stand possessed thereof in trust to permit persons of the Hindu community to use the same as a hospital, and shall stand possessed of the balance upon trust to invest the same as authorized by S. 20, Trusts Act 2 of 1882, and to expend the income thereof in maintaining and conducting the said hospital. I declare that my said executors and trustees shall settle in their absolute discretion the scheme for conducting the hospital hereby declared to be founded."

(3.) On 7 March 1929 the appellant brought the suit out of which the present appeal arises, in the High Court at Bombay, against the respondents, claiming that she should be paid Rs. 5,000 per month for her maintenance, and should be allowed the use of the house at Narayan Dabholkar Road, where she had been residing for twenty-five years, for her residence during her widowhood. The respondents, as doubtless still in duty bound in view of the direction to that effect contained in the will, strongly contested the appellant's claim. Finally however a report by a Commissioner to whom the claim was referred for inquiry was made and although excepted to by both sides was upheld by the Court which on 26 January 1931 passed a decree by which the appellant's maintenance was fixed at Rs. 1,700 per month, and the following declarations and orders were made as to her claim to residence: "And this Court doth further order and declare that the upper floor of the bungalow at Narayan Dabholkar Road, bearing D ward No. 8351, Street No. 26, together with four rooms, including kitchen, one stable and one cowshed of the outhouse thereof, now in the occupation of the plaintiff, is a suitable residence of her, and that the defendants do set apart the same for her residence, free of all rates and taxes and costs of maintenance and repairs, which shall be paid and borne by the defendants out of the estate of the said deceased. And this Court doth further order and declare that in case it becomes necessary for the executors to sell the said premises or in case the said premises are not available for any reason for the plaintiff's residence, the defendants do out of the estate of the said deceased in their hands pay to the plaintiff a further sum of Rs. 400 per month in lieu of such residence."